Montana’s right to a Clean & Healthful Environment

In a 1999 landmark decision, MEIC v. Montana DEQ, the Montana Supreme Court ruled unanimously that Montanans’ constitutional right to a clean and healthful environment (Article IX, Section 1) is a fundamental right and one that is intended to be preventative in nature.

The sweeping decision responded to an appeal filed by MEIC and Women’s Voices for the Earth (WVE) of a 1996 decision by State district judge Jeffrey Sherlock of Helena. The original suit was filed because the Montana Department of Environmental Quality had allowed the Seven-Up Pete Joint Venture to pump, without any treatment, millions of gallons of arsenic-tainted water into the Landers Fork and Blackfoot Rivers. MEIC and WVE claimed that the discharges violated the Constitution’s right to a clean and healthful environment, and that the exemption was unconstitutional.

In an opinion by Justice Trieweiler, the Montana Supreme Court held that: “Our constitution does not require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked,” and concluded that “the delegates’ intention was to provide language and protections which are both anticipatory and preventative,” establishing that the right is preventative in nature. The Supreme Court returned the case to Sherlock for him to apply the constitutional provisions correctly.

The original case stemmed from DEQ’s action in allowing the Seven-Up Pete Joint Venture to pump water during 1995 out of three deep wells just north of the proposed mine site eight miles east of Lincoln. The water was pumped into shallow pits — called infiltration galleries — dug next to both the Landers Fork and Blackfoot Rivers. The water then drained down through the gravelly soil and into the rivers. The suit was brought in October 1995. DEQ authorized another season of pumping in 1996, at which time the groups unsuccessfully attempted to get Sherlock to stop the pump tests until he had ruled on the original case. He denied the request for an injunction, but allowed the suit to proceed. He ultimately dismissed the suit, saying he could not decide the constitutionality of the law unless the groups showed that environmental damage had occurred. They had not made that showing, he said.

Tests at the wells showed arsenic concentrations of 36 to 55 parts per billion, far above the State standard of 18 ppb. And the 18 ppb standard was the result of a 1,000 fold weakening of the previous standard by the 1995 legislature. In addition, the water contained iron, zinc, and manganese in excess of State standards.

The 1995 legislature also passed Senate Bill 331, which included two blanket exemptions from the State’s non-degradation policy. One said that any water discharge resulting from mining exploration activities was, by definition, nonsignificant and therefore exempt from any review under the non-degradation policy. The other exemption said that any water discharge resulting from pump tests of wells was also, by definition, nonsignificant and exempt from any review, as long as the water pumped out of the ground was not altered in any way before it was discharged.

The law did say that this pumping could only take place if the receiving water did not, as a result, exceed State standards. However, receiving waters never exceed State standards because DEQ always grants a mixing zone (an area where concentrations of pollutants are allowed to exceed standards) to the discharger which is always large enough that the standards are not violated at its downstream edge where compliance measurements are taken.

The Supreme Court’s ruling ultimately says that blanket exemptions such as these are unconstitutional unless the State can show a compelling State interest for granting such exemptions. It may well mean that mixing zones are similarly unconstitutional.